Interim guidance from EHRC is out, thread 2

Problem is, as a pp on the first thread found out, the H&S executive don't seem to be willing to enforce it. So where do we go from here?

What is the strategy here?

It's clearly wrong, and won't work in court.

Wouldn't SW be better off accepting the decision and campaigning for a change in the law?

• separate facilities for men and women, except where each toilet is in a separate room lockable from the inside

I suppose Mridul Wadhwa calling women who wanted single sex refuges 'bigots' and taking the job reserved for a woman isn't strictly completely speaking per se 'challenging' the exclusion of TW in Rape Crisis. If you squint really hard.

So we are at the outright lying stage now...

Just listened to Stephen Kinnock, Health and care Minister working for Wes Streeting, interviewed by Emma Barnett on BBc Radio 4 Today programme

He was asked when the NHS will implement the Supreme Court single sex judgement, given that Interim guidance has been issued. His reply was a masterclass in hedging and prevarication, like a page out of the script for Sir Humphrey in Yes Minister. He wittered on in his low energy voice including saying:

• single sex provision would be the “default position” (I.e. there will be exceptions).
• the department “will need to digest the guidance” before issuing guidance to hospitals et al
• ”important not to pre-empt” …”because that will muddy the waters”
• ”keen not to jump to conclusions”…”important to wait”…
• etc.

I took from this that has no intention at all of acting on the EHRC Interim Guidance.

He was asked about the report that came out over the weekend that all dysmorphic children will be screened for autism. Said he heard about it but was not familiar with it. I can’t believe it was not given to him in advance, he’s the number 2 Minister in the department. Anyway he declined to answer any questions.

Of course he has a trans child. Perhaps this gives him a personal conflict, and his position as Minister is not tenable and he should step down.

Certainly if I were Wes Streeting wanting to get on with sorting this mess out, Kinnock is not someone I would want as second lieutenant.

I'm confused with all this too. I'm trans (bio female) and am happy with the ruling because biological sex is important and with everything that has happened with the whole TWAW thing this had to be clarified. I just want to know where I can go to the bathroom or to get changed - especially at work - as I have medically transitioned and am always greeted as if I were male when meeting someone new. This could be that everyone is super trans aware, but it could also be that I look too male to be using single-sex female facilities without causing some discomfort to the women around me or myself as I would feel uncomfortable making others uncomfortable but also being worried about being asked to leave etc. That being said I shouldn't be in the men's room either. I don't see that many places (including work) will be able to accommodate two single sex areas, disabled toilets and then another space for those excluded from both single sex areas and I can't afford to always buy a coffee and use the single sex spaces in cafes etc.

I just hope the guidance comes out soon!

Coincidentally, Akua Reindorf KC (one of the Commissioners of the EHCR) tweeted on this just now to somebody who had a similar question.

Question: My understanding is that it says, for example, that lesbian groups must exclude trans women? Rather than can just legally exclude them if they choose?

Reply from AR:

It’s an inevitable consequence of the judgment. In general an association mustn’t discriminate against a person by depriving them of membership because of a protected characteristic: s.101(1). So eg a reading group can’t say “no disabled people” /1

But there’s an exception which says that an association can be limited to people who share a protected characteristic: Sch 16 para 1. Thus an association can be limited to women, disabled people, older people, black people etc /2

An association can combine protected characteristics as long as it’s for people who all have the same two (or more) PCs: lesbian women, black men, young Asian disabled people etc. This way, everybody in the club falls within both/all the PCs /3

But you can’t have an either/or association: disabled people + older people; black women + white men; young people + disabled people. This is because the association can’t satisfy the single protected characteristic condition for any one of its PCs /4

So you can’t have an association for lesbian women and heterosexual men with the protected characteristic of gender reassignment (which is what trans women who are attracted to women are for the purposes of the Act) /5

This wouldn’t be an association for lesbians because it would have straight members; it wouldn’t be an assc for women because some members are men & it wouldn’t be an assc for trans people because some members aren’t trans. Hence it’s discriminatory and unlawful /end

https://x.com/akuareindorf/status/1916748422658359573

Apologies if this has already been asked and answered, but if an employer has a policy that is not EA compliant anymore how long do they have to update it?

This was leading up to Document T. Look at the final Document T.

I agree it’s now getting confusing.

I see this but it was written prior to the SC ruling and may now need to be revised in due course? My question will be whether these building regs will remain as they are after the ECHR interim - or specifically - full guidance? I truly hope so, but the ECHR guidance suggests that although it agrees TG should use the changing room/bathroom etc that accords with their sex, there will be circumstances where it is legitimate to exclude them and in that case alternative provision must be arranged.

I live in a town where there are many, many TGs and lots of old buildings with already limited facilities that will have to find a way to adapt those and still comply with these other laws - which until we know which laws the ECHR are specifically referring to, we can’t really assess what they mean or its implications… but those lines in their guidance now create a grey area? And we know how quick to take people to court they can be, esp with Stonewall and the GLP happy to fund and lobby.

I am just concerned that this fight is not over - that they will fight to erode our single sex spaces and replaces them with unisex ones.

Yes and on Radio 4 yesterday the host ended on this note after a woman from an association (small businesses?) was making out it was impossible for small businesses to manage the 'change'.

It's really not that tricky. Individual bathrooms, or single sex facilities that are actually single sex.

Not getting it from anywhere, I’m inferring? And wondering how it might apply in practice for small businesses when people start kicking off.

Am hoping the full guidance, when it clarifies which of the laws it states allow for the exclusion of tw from mens spaces/TM from women’s, will make it clear what it means as that goes beyond what the SC judgment stated?

I am concerned those few lines in the guidance leave a big hole that people like the good law project may try to drive a truck through and make it all messy because on the one hand the SC was clear - access to facilities must be acc to sex, but the ECHR guidance has muddied that with reference to unspecified laws that may in certain circumstances exclude people regardless of sex?

No, that was in the lead up to this, Document T which came out in 2024.
https://www.gov.uk/government/publications/toilet-accommodation-approved-document-t

H&S regs require single sex facilities for employees and the number is specified according to sex.

Where are you getting this from?

Most provision is already single sex and offered on the basis of male/female. The judgement just clarified that males cannot use the female space and vice versa.

There is no need to provide extra unisex provision except in exceptional cases which are as yet unspecified.

No. They can stay as they are.

@Darkgreendarkbark
IANAL, but as I understand it, the EA starts from the premise that there can be no exclusion from anywhere on the grounds of any of the PCs.
Men with the PC of GR are a subset of men.
If a single sex space is justified as a proportionate means to a legitimate aim, all men must be excluded - gay, straight, with or without tg identity. Ie all men, with or without any other PC. If you include a subset of men, you can't exclude any other men, because you are now not operating a single sex space. So the non-GR men can say this association is for everyone, not just women, so why can't we join/enter? That's the unlawful discrimination part.

I think that's the logic. IANAL.

ETA: Gah. Cross posted.

It's fine to have two unisex universal toilets. According to this https://www.gov.uk/government/news/new-building-requirements-for-separate-male-and-female-toilets you are to avoid mixed sex and you can offer universal toilets (those with wash basin in the cubicle as unisex) as well as or instead of single sex. As the universal toilets take up more space and cost more than the single sex cubicles+sink area many new spaces could choose single sex designs rather than unisex.

The new legislation affects new buildings and major refurbishment only.

So potentially it may be easier for some businesses to close their second loo so that they can be compliant with one single use facility rather than get tied up in red tape? Because previously they had two single sexed spaces but now need to offer an additional unisex one. Or am I overthinking?

Unisex toilets are pretty efficient from a business point of view (less queuing) so if there is a mens and womens toilet facility separately labelled and different locations then this is perhaps because of a reason peculiar to that business (most don't have 50:50 male/female workforce).

If these exist then they can remain the same as before as long as they mean it (i.e. the female is biological female and not +transwomen). As there is only one person in the 'toilets' at one time its probably not that affirming a space, or one where embarrassment of encountering others is likely.

Thinking of some places where the women might want a toilet which is apart from the mens because of complaints about it being messy. smelly, etc.

Yes a lot of it is just confirming what Document T (2024) says. If you have 1 toilet then that’s fine to be a universal one. You can’t have every toilet being universal, single sex toilets come first. Then there’s ambulant toilets (bigger, for frailer people) as well depending on size of venue. These are different from accessible toilets (disabled).

@Darkgreendarkbark its the playing around with language. If transwomen were described as 'trans identified men' then it would be more evident that we were not talking about women. It works really well to confuse. The discussions that are happening post-SC must (surely) be peaking a lot of people who have been averting their gaze from this and trying to ignore. The sheer number of things that it affects is running counter to claims that its just about where people pee.

Yes, I think the issue will now be where businesses have two single-use spaces that have, until now been a mens and a women’s loo. They will now both have to be unisex?